The article, headlined “Wanted! The Epic Boobs girl!”, appeared in the February 2010 edition of the magazine.

It featured a number of photographs of the woman – who was said to have the “best breasts on the block” – taken from the internet, and offered readers of the magazine a reward of £500 for assistance in encouraging her to do a photo shoot with it.

The woman said the article was intrusive. The magazine had published her name, and taken the photographs, from her Bebo site, where they were uploaded in December 2006, when she was 15 years old. They were published without permission. She could not remember whether her site had any privacy settings in place and did not know the circumstances in which the photographs were removed.

The magazine said it had not taken the photographs from the woman’s Bebo site – rather, they were widely available on the internet. At the time of her complaint, searches showed 1,760,000 matches which related to her and 203,000 image matches of her as the “Epic Boobs girl”.

The woman’s name had also been widely circulated and achieved over 100,000 Google hits, including over 8,000 photographs.

The Commission rejected the complaint, and said the case raised the important principle of the extent to which newspapers and magazines could make use of information which is already freely available online.

It had previously published decisions on the use of material on social networking sites, which had gone towards establishing a set of principles in this area.

But this complaint was different: the magazine had not taken the material from the complainant’s Bebo site, but had published a piece commenting on something which had widespread circulation online (having been taken from the Bebo page some time ago by others) and was easily accessed by Google searches.

Images of the woman had been freely available for some time, and she had been identified online as the individual in the pictures.

The Commission could understand that the woman objected strongly to the context in which they appeared online: images of her and her friends in a social context had become proclaimed as “pin-up” material, the subject of innuendo and bawdy jokes.

The commission said: “It was, of course, within this context that the magazine article operated. This was an important point: the magazine had not accessed material from a personal site and then been responsible for an especially salacious means of presenting it; instead it had published a piece discussing the fact that this material was already being widely used in this way by others.”

It did not think it was possible for it to censure the magazine for commenting on material which already had a wide circulation, and had already been contextualised in the same way by many others.

The Commission felt that the images were so widely established that it would be untenable for it to rule that it was wrong for the magazine to use them.

But the Commission made it clear that it had some sympathy with the woman.

“The fact that she was 15 years old when the images were originally taken – although she is an adult now – only added to the questionable tastefulness of the article,” it said.

But it could not rule on issues of taste and offence, or of the legality of the material, it said, adding: “The test, therefore, was whether the publication intruded into the complainant’s privacy, and the Code required the Commission to have regard to ‘the extent to which material is already in the public domain’.

“In the Commission’s view, the information, in the same form as published in the magazine, was widely available to such an extent that its republication did not raise a breach of the Code. The complaint was not upheld on that basis.”

In this case, decided on 16 June 2009, a blogger writing under the name of “Night Jack” tried, and failed, to get an interim injunction to prevent The Times revealing his identity to the world at large (namely, its readers).

Many bloggers go to considerable lengths to conceal their identity; others do not. There was a very good reason why “Night Jack” didn’t want his identity disclosed: in the words of the judge — “The Claimant is a serving detective constable and his blog mostly deals with his police work and his opinions on a number of social and political issues relating to the police and the administration of justice. He expresses strong opinions about these matters including on subjects of political controversy. In particular, he has criticised a number of ministers. … Even though the Claimant believes that he was doing nothing wrong, he suspected that as and when his employing authority discovered his activities, he might be subjected to disciplinary action or, at least, some kind of “pressure” to limit the use of his freedom of expression.”.

The claim was originally put on two alternative bases: (i) breach of confidence; alternatively (ii) improper disclosure of private information. When the case came to court, however, it appeared that the claim for breach of confidence was not being pursued, because the journalist had arrived at the identification of the blogger by a process of deduction and detective work, mainly using information available on the Internet.

The blogger’s main argument in court was that he wished to remain anonymous and has taken steps to preserve his anonymity, and that since the newspaper is fully aware of that, there was no justification for the newspaper “unmasking” him — he was entitled to keep his identity as the author of the blog private and confidential. The blogger’s counsel went so far as to put forward the proposition that “there is a public interest in preserving the anonymity of bloggers”.

When considering a case based on publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, the court takes it in two stages:

Stage one: does the claimant have a reasonable expectation of privacy in relation to the particular information in question? and if so:

Stage two: is there some countervailing public interest that would justify overriding that?

The judge found that the blogger failed at stage one “because blogging is essentially a public rather than a private activity”.

Notwithstanding that, the judge went on to consider the second stage as well, because section 12 of the Human Rights Act 1998 requires that on an application for an interim injunction, the court must form an overall view as to the likelihood or otherwise of the claimant succeeding at the ultimate trial.

The judge went on to consider the impact of the relevant Police (Conduct) Regulations from 2004 and 2008, as they have an impact on how serving police officers are supposed to behave. This includes a general prohibition against “discreditable conduct”, and the judge felt (without deciding the issue) that some might think that the blogger’s activities would “discredit the police service or undermine public confidence in it”.

It was argued on behalf of the newspaper that because the blogger’s writings were “overtly political and highly critical of central and local policing strategies”, the public were entitled to receive information about the author, in order to assess the weight and authority to be attached to them. The blogger argued in reply that all that the newspaper’s readers needed to know was that the author is a serving police officer. The judge disagreed with the blogger on this point, referring to a case where it was pointed out that one may wish to apply greater caution or scepticism in the case of a person with “an axe to grind”. He added that when making a judgement as to the value of comments made about police affairs by “insiders”, it can be helpful to know how experienced or senior the commentator is. All of this pointed to the judge inclining towards disclosing the blogger’s identity.

The judge said that “I do not accept that it is part of the court’s function to protect police officers who are, or think they may be, acting in breach of police discipline regulations from coming to the attention of their superiors”.

The judge was not persuaded by the further argument that because the newspaper had disclosed the blogger’s identity to his employers, there was no need for them to publish it more widely to their entire readership. He said that “the public is entitled to know how police officers behave and the newspaper’s readers would be entitled to come to their own conclusions about whether it is desirable for officers to communicate such matters publicly”.

He was also not persuaded by the argument that the disclosure of his identity beyond his immediate supervisor and the Professional Standards Department of the police would have an adverse impact on his work as a detective, e.g. with regard to working relationships with colleagues, and make it more difficult for him to undertake the surveillance and informant handling work for which he had been trained.

In concluding, the judge stated that the claim failed at the first stage, because the information that the blogger was seeking to protect (his identity) did not have the necessary “quality of confidence” to be protected by the law of confidentiality, nor did it qualify as information in respect of which he would have “a reasonable expectation of privacy”. He went on to say that even if he were wrong about that, any right of privacy that the claimant might be entitled to would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer had been making these communications to the public by means of his blog.

Some of this decision may have turned on the particular facts, namely that the person seeking to conceal his identity was a serving police officer talking about police matters, amongst other things. However, the judge’s primary finding was that blogging is a public activity and therefore the identity of the blogger is not private information. On this basis, it’s highly unlikely that any other blogger seeking to preserve his anonymity is likely to succeed in the face of a determined investigative journalist — at any rate, he or she cannot expect much assistance from the courts.

Melvin Burgess is a very well-known author, writing for teenagers in particular. A number of his books have caused plenty of controversy — for example, Junk (“an uncompromising, compelling and true-to-life story of two teenagers drawn into the dangerous and destructive world of heroin addiction”), Doing It (“Three lads discovering sex for the first time. But do any of them really know what they’re doing?”), Sara’s Face ( an interesting twist on fame and cosmetic surgery) and Lady – My Life as a Bitch (“A flirtatious, confident and rebellious teenager is transformed into an understandably confused and frightened dog by a tramp with magical powers”)[descriptions taken from reviews on Amazon.co.uk].
His latest, as yet unpublished, book may yet ironically turn out to be one of his most controversial. And it was intended to be a “teenage memoir… an affectionate look back, a chance for me to feel that maybe I wasn’t as useless as I seemed back then, and to invite others to feel the same about themselves”. Unfortunately, when the publisher, Andersen Press, received a libel report from its lawyer, it contained a terrifying list of people who might claim that their privacy has been infringed, and that the consequences of these claims being made on a “no win, no fee” basis could be ruinous for the publisher (not to mention the author). So the author adopted the usual trick of disguising names, dates, places, characteristics etc (apart from his own, of course), thus turning it from a memoir into something entirely different, but even this wasn’t acceptable to the publisher. Whether the publisher then rejected the book or the author then withdrew the book is not quite clear from the article in The Guardian, but the outcome is that Andersen Press will not be publishing this book– which is a shame, as they have published so many of his books.

The author remains optimistic that another publisher will publish the book — “other lawyers and publishers are more sanguine”. However, this whole episode is perhaps a sad reflection on the state of the law in the UK nowadays.

The U.K.’s libel laws are repeatedly criticised for being repressive, anti-free speech and much too biased in favour of claimants. This is particularly so when compared with the libel laws of the United States. If this example is anything to go by, then UK privacy laws, deriving from the European Convention on Human Rights, and combined with the libel laws, threaten to make things even more dangerous for authors and publishers. The problem is that few, if any, publishers (even large multinational publishers) would be prepared to go ahead and publish when advised that the publication could risk multiple substantial claims. Even a highly successful author might struggle to compensate the publisher under the warranties and indemnity that the author is bound to have given to the publisher in the publishing contract. And if the publisher were to publish, having been warned of the risks, it might even be argued that the author would not be obliged to indemnify the publisher in the event of any claims.

The result of this climate of fear could be the entire loss of the genre of memoir or — just as bad — that only fictional memoir can safely be published in future.

Perhaps what is needed is for a brave publisher, preferably with deep pockets, to publish a book such as this and to fight any resulting claims, so that we can see what will be the attitude of the courts to such claims. Any volunteers?